Langit Rinesti

Published: January 18, 2022

Being a citizen of the sovereign state of Indonesia should not cost the indigenous people their sovereignty.

Spanning over 13,000 islands, the current Republic of Indonesia consists of areas that used to belong not only to many individual old kingdoms and sultanates. The country also covers territories that have been home to various ethnic groups and indigenous peoples for generations. This area includes approximately 4.7 million hectares of customary forest, as mapped by the Indonesian advocacy group The Indigenous Peoples’ Alliance of the Archipelago (AMAN)

Indigenous people in the archipelago fought side by side with the nationalists against Dutch colonial rule. Yet long after the Indonesian declaration of independence on August 17, 1945, indigenous people’s right over their ancestral land and forest has never ceased to be an object of dispute. 

The State’s Agrarian Law of 1960 gave indigenous people their first formal recognition in the country. Even so, the law also stipulates that customary laws apply only if they are in line with national interests. Under the 1963 Government Regulation on State Forestry Management, later replaced by the 1999 Forestry Law, the central government possesses the authority to convert customary forests (hutan adat) into state forests, thus allowing the lands to be redistributed to companies as private concessions

It was not until the historic Constitutional Court ruling in 2013, locally known as MK35, that customary forests were finally recognized as no longer part of “State Forest Area”. It has been a big step for many indigenous groups to reclaim their ancestral lands. Still, only 18 communities’ rights are recognized by the State as per 2018.

Therefore, one unifying law instrument is urgently needed to clarify the mechanism by which an indigenous community can gain formal recognition and protection of their customary rights. The lack of such regulation has rendered the legal claim over communal forests unclear, thus becoming the root cause of numerous human rights violations of many indigenous communities in Indonesia.

Devil in the Detail

Since the early days of its conception as a republic, Indonesia has recognized the existence of indigenous people in the archipelago. Statement of recognition over indigenous communities and their traditional rights is mentioned in the National Constitution, UUD 1945, both before and after the amendment.

The Second Amendment to the 1945 Constitution Article 18 B Paragraph (2) states that:

The state shall acknowledge and respect traditional societies along with their customary rights as long as these remain in existence and are in accordance with the societal development and the principles of the Unitary State of the Republic of Indonesia, and shall be regulated by law. 

Meanwhile, Article 28 I paragraph (3) states that:

The cultural identities and rights of traditional communities shall be respected in accordance with the development of times and civilizations.

The two paragraphs use two different terms to address the indigenous people: Kesatuan Masyarakat Hukum Adat (Customary Law Community Units) in Article 18 B paragraph 2 and Masyarakat Tradisional (Traditional Society) in Article 28 I paragraph 3. Both terms are left with no detailed explanation.

Other regulations such as the 1999 Forestry Law and 2014 Village Law have tried yet failed, to properly encapsulate the essence of indigenous people and their way of life. In some official documents, indigenous people are even addressed in a derogatory manner, often pertaining to the monetary value of their customary lands and forests or their “primitive” way of life. One example would be the term Komunitas Adat Tertinggal (backward customary community), insinuating that the group is falling behind the rest of ‘modernized’ mainstream society.

Several international instruments have been created to address many issues shared by indigenous people from all over the world; such as discrimination, marginalization, and violation of human rights. Indonesia has yet to ratify ILO Convention No. 169 on Indigenous and Tribal Peoples but is a signatory to the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Even so, the government deems the UN’s concept regarding indigenous people inapplicable, arguing that all Indonesians (except the ethnic Chinese) are indigenous people, thus entitled to the same rights. 

By saying this, the government avoids the notion of certain ethnic groups having ownership over certain territories within the country. At the same time, it serves to deny the customary rights and specific needs of communities identifying themselves as indigenous. Then again, getting a formal acknowledgment as indigenous people in Indonesia is a whole different can of worms to open.

Question of identity

Based on the 2010 census by Statistic Indonesia, there are currently 1,331 ethnic groups recognized by the government. Nevertheless, all the listed groups do not necessarily comply with what the international community has agreed to call ‘indigenous’. For instance, the Javanese—the biggest ethnic group native to Java Island—do not exactly count as an indigenous group. Making up more than 40% of the Indonesian population, the Javanese  are practically the dominant group in the society.

So, to help understand the meaning of the term “indigenous”, the UN has introduced seven points of signifier, which are:

  • Self-identification as indigenous peoples at the individual level and accepted by the community as their member,
  • Historical continuity with pre-colonial and/or pre-settler societies,
  • Strong link to territories and surrounding natural resources,
  • Distinct social, economic or political systems,
  • Distinct language, culture and beliefs,
  • Form non-dominant groups of society,
  • Resolve to maintain and reproduce their ancestral environments and systems as distinctive peoples and communities.

In Indonesia, AMAN has recommended the use of Indonesian term Masyarakat Adat (customary society) to refer to the term “indigenous people”. Masyarakat Adat are distinct from other social groups by four main identifiers:

  1. Cultural identity – shared language, spirituality, values, norms, and customs,
  2. Knowledge and value system – including local wisdom and traditional knowledge of healing, agricultural practices, plays, etc.,
  3. Customary territory – land, sea, forests, and other natural resources seen not only from the economic perspective, but also from that of religious, cultural, and social system,
  4. Customary laws and institutions – rules and self-management to live together as a social, cultural, economic, and political group. 

With this framework, AMAN estimates a total of 40-70 million of indigenous people among Indonesia’s population of 270 million people (Statistics Indonesia, 2020). These are some of the most vulnerable and marginalized groups in the country. Many of them have experienced forced eviction, arrest, or other forms of violence prior to land grab by authorities or private companies—most often to make way for oil palm plantations, pulp and paper production, industrial logging, and mining activities.

Indonesia’s NGO Consortium for Agrarian Reform (KPA) has documented more than 650 land-related conflicts affecting over 650,000 households in 2017, as well as about 410 conflicts affecting 87,568 households in 2018 alone.

Unrecognized by the State and often lacking in moral, financial, legal, and educational support, the many self-identifying indigenous people often have very little standing before human rights abuse that befalls upon them. Meanwhile, the clear mechanism through which an indigenous group may get formal recognition was only introduced in 2015 by the Ministry of Home Affairs regulation. Even then, the bureaucratic process is arguably long and arduous. It is also almost entirely done by government officials instead of shared with all concerning parties.

For the most part, local authorities have been responsible to identify and authorize an indigenous group in their respective region. In some cases, such as in Bulukumba District in South Sulawesi Province, local government is actively involved in the creation of Bulukumba District Regulation on Inauguration, Recognition and Protection of the Indigenous People of Ammatoa Kajang in the region. Unfortunately, local governments in general are usually either unequipped or unwilling to be preoccupied with issues concerning local indigenous people—many of which due to conflict of interests. 

Tangled mess of conflicting interests

For a very long time, the Indonesian government did not distinguish between customary lands and that of the State. With enough money, political power, and connections, anyone could virtually apply for a permit to exploit almost any plot of land in the country. The law requires companies to seek consultation with potentially impacted locals before applying for permits. But in practice, they often manage to dodge the obligation by striking deals with uninformed or unconcerned local authorities.

During President Susilo Bambang Yudhoyono’s tenure in 2010, the government started working on the One Map Policy (Kebijakan Satu Peta) program. The goal is to assemble various thematic maps in order to form a single geospatial map as a reference for tracking space utilization all over the country.

Unfortunately, the government has no well-documented maps and social data to indicate the presence of indigenous people as well as their respective customary lands. Thus, AMAN collaborates with Working Networks for Participatory Mapping (JKPP), Forest Watch Indonesia (FWI), Supporting Consortium for Society-based Forestry System (KpSHK), and Sawit Watch (SW) to create Customary Area Registration Agency (BRWA). AMAN submitted the initial map to Indonesian Geospatial Information Agency (BIG) in 2012.

Status of acknowledged customary territories in Indonesia per April 2021.

Data and visual by BRWA

By April 2021, BRWA had registered 945 maps of Indigenous regions with an area of 12.2 million hectares spread across 27 provinces and 128 districts/cities. The area includes forests and peatlands rich in natural resources. However, only 20% or 2.4 million hectares of land have been formally recognized by the government. The rest still have their legal status stuck in bureaucratic limbo, although about 57% stay in regions with some sort of regulation concerning indigenous people.

Upon further inspections, there is a significant amount of overlapping designated territories within these indigenous people’ customary lands, including:

  • 1.1 million hectare oil palm plantation permit,
  • 1 million hectare oil and gas mining concession,
  • 190,000 hectares area of interest (AoI) for Food Estate program in four provinces (North Sumatra, South Sumatra, Central Kalimantan, and Papua),
  • 4.1 million hectares of the 2nd period of 2021 Indicative Termination Map (PIPPIB), released prior to 2019 permanent forest and peatlands clearing ban. 

While the latest point serves to ban further deforestation, it also prohibits indigenous communities with implicated areas from making use of their land’s natural resources.

Political will—that is all it takes

After the 2013 court ruling, the next important step is to secure legal recognition and protection of indigenous people by national law. The legislation would not only help resolve many ongoing agrarian conflicts between indigenous communities and private companies. It would also give a strong basis for sustainable land and forest management by local initiatives, given that:

Indigenous People Bill (RUU MHA) first came into the deliberation process in 2009. Since then, it had been three times included in the House’s priority list for deliberation (Prolegnas), each in 2013, 2017, and 2020, but to no avail. The bill is reintroduced in 2021, but the progress is relatively slow.

According to the chairperson of the Working Committee for Drafting the MHA Bill at the Legislative Body (Baleg), there has been persistent concern that the bill inauguration would hinder development, investment, and big corporations. The preference for economic and industrial causes is showcased in the House’s swiftness to inaugurate Omnibus Law of Job Creation (UU Cipta Kerja) as well as the revision of Mining, Mineral and Coal Law (UU Minerba) in 2020—both of which are considered to be hastily and closely drafted. The fact that 318 out of 575 or 55% of the members of the House at the time are business people makes the development rather unsurprising. 

Some progress has actually been made in a few recent years. Starting in 2017, the national government has begun to hand over collective rights of forest management to indigenous communities. Recognition of the rights of indigenous people is, after all, included in President Joko “Jokowi” WIdodo’s Nawa Cita programs introduced in the beginning of his first presidential term. Under the social forestry program, Jokowi seeks to transfer management rights of 12.7 million more hectares of land and forest towards indigenous communities in various regions.

In an attempt to reform the system of natural resources management in the country, Jokowi also terminated thousands of mining, forest exploitation and land utilisation permits in early January 2022, including:

  • 2,078 mining permits (IUP),
  • 192 forestry permits covering an area of 3.1 million hectares,
  • plantation rights (HGU) covering an area of 34,448 hectares.

A number of companies whose permits are revoked have been previously sued or sanctioned by the government for unlawful and unethical practices. Some have already been found guilty and also sentenced by the court. For this reason, civil societies have suggested that the government assign them to land and forest recovery duty, as well as require them to give appropriate compensation to impacted local communities. Meanwhile, locals could take care of areas that used to be under management of companies with no legal responsibility.

Thus, the ultimate solution to indigineous people’s rights rests on the political willingness of the government, national and local alike. For the time being, the inauguration of Indigenous People Bill should be a priority. Until this important milestone is reached, the struggle for Indonesian indigenous people’s ways must continue. 

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